The Blog of International Judicial Assistance | By Ted Folkman of Murphy & King

Lago Agrio: Amazon Watch Posts Chevron “Outtakes”

Posted on April 9, 2015

Yesterday Amazon Watch, an environmental group that has recently been in Chevron’s crosshairs, published a six-minute video showing one of the pre-inspection site visits that Chevron personnel conducted.
The video clip shows an inspection apparently not going as planned. The plan was not to find petroleum, yet everyone seems to agree that the samples they’re taking do contain petroleum. The “gotcha” lines:

According to Chevron spokesman Morgan Crinklaw, there’s nothing amiss here. “These edited video clips demonstrate the process used to identify the perimeters of pits at oil field sites, which is standard practice in environmental testing. A variety of samples were taken inside and outside the pits to determine their borders.” Part of the plan for the preinspections was to find the border between contaminated and uncontaminated areas, which necessarily means that you want some of the samples you take to be “clean.” But Kevin Koenig, Amazon Watch’s Ecuador program director, told me that the video “speaks for itself” and that the sites shown are sites that Chevron “claimed to have remediated.” Crinklaw was not immediately able to confirm that, because it’s not entirely clear which sites are shown. He did, though, give me a statement that avoided tackling the tape in any greater detail than I’ve just suggested: “These edited clips do not indicate what site was being tested or whether the site was the responsibility of Texaco or Petroecuador, the state-owned oil company. The judgment against Chevron in Ecuador has been found by a U.S. federal court to be the product of fraud. If there was evidence to support their claims against Chevron, the plaintiffs and their lawyers would not have had to resort to bribery, extortion, ghostwriting and other corrupt means.”

I understand Chevron’s point on the purpose of the preinspections, but when I listen to the tape, that’s not the vibe I get.

Watch the tape and see what you think, but it’s clear to me that the Chevron folks are unhappy that they’ve found petroleum in the spots they’ve tested, and it’s hard to see how that could be if they were just hunting for the boundary between the clean area and the polluted area.

Do the parties’ different interpretations of this tape remind you of any other video clip in the case? Perhaps a clip where Donziger says, in a menacing way, that he’s going to go tell the judge what time it is? To me the similarity is obvious: both this tape and the Crude outtakes involve film that can be given a nefarious interpretation. Both this tape and the outtakes took place in a context that arguably shows that what appears suspicious is in fact innocuous. I put this comparison to representatives of both sides, and neither liked it, which suggests to me that I am on the right track.

According to Koenig, Amazon Watch received the videos—fifty-one DVDs in total, with perhaps a hundred hours of footage—sometime in 2011 from an anonymous source, apparently someone working for Chevron. Amazon Watch gave them to the LAPs’ lawyers, who unsuccessfully offered some of them in evidence when cross-examining Chevron scientist Sara McMillan. (It’s not clear whether the tape published yesterday was among those the LAPs sought to use at trial). The timing of yesterday’s publication is a little curious: why are we seeing this tape for the first time now, in 2015? Koenig’s explanation was a little limp: “We got them in 2011. We didn’t open them for a while. Then the RICO case started. … We turned them over to Donziger to see if there was anything helpful on them. We had some questions about whether we could put them out or not. We spoke with our counsel,” and eventually, four years later, decided to publish. This is believable to me, though it doesn’t say much about Amazon Watch’s efficiency.

What’s the relevance of this new tape? Legally speaking, probably close to nothing. These tapes were excluded from evidence on various grounds by Judge Kaplan, and if I recall the appellate briefs correctly, neither the LAPs nor Donziger have raised the evidentiary question on appeal. (It seems to me that although Judge Kaplan did keep out much of the LAPs’ evidence and argument about the environmental situation in the Oriente, it would have been fair to use a tape such as this in cross-examining Dr. McMillan, who after all was a Chevron scientist and who was present at many inspections). In any case, even giving this tape its most nefarious interpretation, what does it show? Remember, in the end, the Ecuadoran court—at Donziger’s behest—put a stop to the preinspections in favor of a supposedly neutral inspection process headed by Cabrera. Maybe more importantly, if Chevron was trying to pull one over on the Ecuadoran court, it failed: the LAPs won the case. If the tape is good for any good legal purpose, it would seem to be for an unclean hands argument that would suffer from the problem that Chevron’s dirty tricks, if dirty tricks there were, failed and accomplished nothing.

But as pure PR, this tape is pretty good for Amazon Watch and, by extension, Donziger and the LAPs. It suggests shenanigans and makes Chevron appear to be manipulating the preinspections to produce favorable results. I don’t expect this tape to affect the outcome of either of the two proceedings coming in the next few weeks (the Second Circuit appeal or the next hearing in the arbitration), but they create an ambiance that the LAPs have to like.

5 Comments

Ted, if you and Mr. Clinklaw had read the press release you would know the Chevron technicians talking about finding oil “where it shouldn’t have been” is Shushufindi 21, which Texaco claimed to have remediated. Obviously Texaco did NOT, and that is why Dave and Rene are surprised by finding so much oil when they dig into the pit.

Remember when the two Texaco/Chevron lawyers were indicted in Ecuador? This is why they were indicted for lying to the government of Ecuador about the remediation. I don’t know why they did not prosecute, but they should have.

The remediation just did not happen. Texaco and Chevron have lied about it in U.S. court and in Ecuador court. But, it appears that it’s OK for Chevron to lie in court.

Just like the villager Merla said in the video, Texaco came to the pit, threw dirt over it, and left it there. She lives near Shushufindi 25, another so-called “remediated” pit.

This is the sickest, most immoral part of this whole screwed-up litigation: Texaco told the villagers they cleaned pits. The villagers moved closer to them because they thought they were clean. By lying about the cleanup, Texaco led people to greater jeopardy. Children living near the pits have died; people living near the pits are more likely to have cancer than if they don’t live near them.

This is criminal. And, if the arbitration panel doesn’t take this into account then is the kangaroo court we have always said it was.

Other parts of the compilation video show scenes from Sacha 18, another “remediated” pit.

Embedded in the press release are links to the videos from Shushufindi 21, 25, and 10 and Sacha 18, which are clearly named.

Amazon Watch should have named the pits in the compilation to make it easier for people who don’t read.

Also, in light of your comment, I probably should clarify that I think the tapes have little legal import in the US litigation. I haven’t really thought through whether they might have any import in the arbitration.

As we state in the press release, each video included the name of its location.

If you look at the original video — which was linked to in the press release — you will see a map labeled Shushufindi 21 at the very beginning. I suppose you could say that someone — even me — put a phony map onto the video. But, the truth is Chevron will never acknowledge that it’s Shushufindi 21 because to do so would prove they lied to US and Ecuador courts about the remediated pits.

Oh, I see what you are saying—the notations on that map indicate to you that this is Shushufindi 21. I will follow up on that. Interestingly, when you click on the link to that tape on the press release, the link skips right over the map for some reason.

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